1. Review under the Criminal Appeals Act of a judgment
sustaining a demurrer to an indictment is confined to the questions
of statutory construction and validity decided by the District
Court. P.
313 U. S.
309.
2. In Louisiana, a primary election to nominate a party
candidate for the office of Representative in Congress is conducted
at the public expense and regulated by statute. Candidates who may
be voted for at general elections are restricted to primary
nominees; to persons, not candidates in the primary, who file
nomination papers with the requisite number of signatures, and to
persons whose names may be lawfully written into the ballots by the
electors. The practical effect is to impose serious restrictions
upon the choice of candidates by the voters save by voting at the
primary election. The primary election is an integral part of the
procedure for choosing Representatives, and in this case, as
alleged by the indictment, its practical operation, in the
particular Congressional District involved, is to secure the
election of the primary nominee of a particular political party.
Pp.
313 U. S. 311
et seq.
3. The right of the people to choose Representatives in Congress
is a right established and guaranteed by Art. I, § 2 of the
Constitution, and hence is one secured by it to those citizens and
inhabitants of the State who are entitled to exercise the right. P.
313 U. S.
314.
The right to vote for Representatives in Congress is a right
"derived from the States," only in the sense that the States are
authorized by the Constitution to legislate on the subject, as
provided by § 2 of Art. I, to the extent that Congress has not
restricted state action by the exercise of its powers to regulate
elections under § 4, and its more general power, under Art. I, § 8,
cl. 18, "to make all laws which shall be necessary and proper for
carrying into execution the foregoing powers."
4. Included within the right to choose, secured by the
Constitution, is the right of qualified voters within a State to
cast their ballots and have them counted at Congressional
elections. P.
313 U. S.
315.
Since the constitutional command is without restriction or
limitation, this right, unlike those guaranteed by the Fourteenth
and Fifteenth
Page 313 U. S. 300
Amendments, is secured against the action of individuals, as
well as of States.
5. Where the state law has made the primary election an integral
part of the procedure of choosing Representatives, or where, in
fact, the primary effectively controls the choice, the right of the
qualified elector to vote and have his ballot counted at the
primary, is part of the right to choose Representatives secured by
Art. I, § 2. P.
313 U. S.
316.
In determining whether a provision of the Constitution applies
to a new subject matter, it is of little significance that it is
one with which the framers were not familiar. For, in setting up an
enduring framework of government, they undertook to carry out for
the indefinite future and in all the vicissitudes of the changing
affairs of men, those fundamental purposes which the instrument
itself discloses. Hence, we read its words not as we read
legislative codes which are subject to continuous revision with the
changing course of events, but as the revelation of the great
purposes which were intended to be achieved by the Constitution as
a continuing instrument of government.
6. A primary election, which is a necessary step in the choice
of candidates for election as Representatives in Congress, and
which, in the circumstances of the case, controls that choice, is
an election within the meaning of Art. I, §§ 2 and 4 of the
Constitution, and is subject to Congressional regulation as to the
manner of holding it. P.
313 U. S.
317.
7. Art. I, § 8, cl. 18 of the Constitution empowers Congress to
safeguard by appropriate legislation the right of choice by the
people of Representatives in Congress secured by § 2 of Art. I. P.
313 U. S.
320.
8. Section 19 of the Criminal Code, making it a crime to
conspire to "injure" or "oppress" any citizen "in the free exercise
of any right or privilege secured to him by the Constitution,"
embraces a conspiracy to prevent qualified voters from exercising
their constitutional right of voting, and having their votes
counted, in a primary election prerequisite to the choice of party
candidates for a Congressional election. P.
313 U.S. 321.
9. Section 20 of the Criminal Code provides that whoever, "under
color of any law," willfully subjects any inhabitant of any State
to the deprivation of any rights, privileges or immunities secured
or protected by the Constitution and laws of the United States
"or to different punishments, pains, or penalties, on account of
such inhabitant being an alien, or by reason of his color, or race,
than are prescribed for the punishment of citizens,"
shall be punished as prescribed.
Held:
Page 313 U. S. 301
(1) The action of election official who conducted a primary
election to nominate a party candidate for Representative in
Congress in willfully altering and falsely counting and certifying
the ballots, were acts under color of state law depriving the voter
of constitutional rights within the meaning of the section. P.
313 U. S.
325.
(2) The section authorizes punishment for two different
offenses: the offense of willfully subjecting any inhabitant to the
deprivation of rights secured by the Constitution, and the offense
of willfully subjecting any inhabitant to different punishments on
account of his alienage, color or race, than are prescribed for the
punishment of citizens. P.
313 U. S. 327.
10. The Court declines to consider the application of § 20 to
deprivations of the light to equal protection of the laws
guaranteed by the Fourteenth Amendment, a point apparently raised
for the first time by the Government's brief in this Court and not
assigned as error. Since the indictment, on its face, does not
purport to charge a deprivation of equal protection to voters or
candidates, the Court is not called upon to construe the indictment
in order to raise a question of statutory validity or construction.
P.
313 U. S.
329.
35 F. Supp. 66, reversed.
APPEAL from an order of the District Court sustaining a demurrer
to two counts of an indictment.
Page 313 U. S. 307
MR. JUSTICE STONE delivered the opinion of the Court.
Two counts of an indictment found in a federal district court
charged that appellees, Commissioners of Elections, conducting a
primary election under Louisiana law to nominate a candidate of the
Democratic Party for representative in Congress, willfully altered
and falsely counted and certified the ballots of voters cast in the
primary election. The questions for decision are whether the right
of qualified voters to vote in the Louisiana primary and to have
their ballots counted is a right "secured by the Constitution"
within the meaning of § 19 and 20 of the Criminal Code, and whether
the acts of appellees charged in the indictment violate those
sections.
On September 25, 1940, appellees were indicted in the District
Court for Eastern Louisiana for violations of §§ 19 and 20 of the
Criminal Code, 18 U.S.C. §§ 51, 52. The first count of the
indictment alleged that a primary election was held on September
10, 1940, for the purpose of nominating a candidate of the
Democratic Party for
Page 313 U. S. 308
the office of Representative in Congress for the Second
Congressional District of Louisiana, to be chosen at an election to
be held on November 10th; that, in that district, nomination as a
candidate of the Democratic Party is and always has been equivalent
to an election; that appellees were Commissioners of Election,
selected in accordance with the Louisiana law to conduct the
primary in the Second Precinct of the Tenth Ward of New Orleans, in
which there were five hundred and thirty-seven citizens and
qualified voters.
The charge, based on these allegations, was that the appellees
conspired with each other, and with others unknown, to injure and
oppress citizens in the free exercise and enjoyment of rights and
privileges secured to them by the Constitution and Laws of the
United States, namely, (1) the right of qualified voters who cast
their ballots in the primary election to have their ballots counted
as cast for the candidate of their choice, and (2) the right of the
candidates to run for the office of Congressman and to have the
votes in favor of their nomination counted as cast. The overt acts
alleged were that the appellees altered eighty-three ballots cast
for one candidate and fourteen cast for another, marking and
counting them as votes for a third candidate, and that they falsely
certified the number of votes cast for the respective candidates to
the chairman of the Second Congressional District Committee.
The second count, repeating the allegations of fact already
detailed, charged that the appellees, as Commissioners of Election,
willfully and under color of law subjected registered voters at the
primary who were inhabitants of Louisiana to the deprivation of
rights, privileges and immunities secured and protected by the
Constitution and Laws of the United States, namely their right to
cast their votes for the candidates of their choice and to have
their votes counted as cast. It further charged
Page 313 U. S. 309
that this deprivation was effected by the willful failure and
refusal of defendants to count the votes as cast, by their
alteration of the ballots, and by their false certification of the
number of votes cast for the respective candidates in the manner
already indicated.
The District Court sustained a demurrer to counts 1 and 2 on the
ground that § 19 and 20 of the Criminal Code, under which the
indictment was drawn, do not apply to the state of facts disclosed
by the indictment, and that, if applied to those facts, §§ 19 and
20 are without constitutional sanction, citing
United States v.
Gradwell, 243 U. S. 476,
243 U. S. 488,
243 U. S. 489;
Newberry v. United States, 256 U.
S. 232. The case comes here on direct appeal from the
District Court under the provisions of the Criminal Appeals Act,
Judicial Code, § 238, 18 U.S.C. § 682; 28 U.S.C. § 345, which
authorize an appeal by the United States from a decision or
judgment sustaining a demurrer to an indictment where the decision
or judgment is "based upon the invalidity or construction of the
statute upon which the indictment is founded."
Upon such an appeal, our review is confined to the questions of
statutory construction and validity decided by the District Court.
United States v. Patten, 226 U. S. 525;
United States v. Birdsall, 233 U.
S. 223,
233 U. S. 230;
United States v. Borden Co., 308 U.
S. 188,
308 U. S.
192-193. Hence, we do not pass upon various arguments
advanced by appellees as to the sufficiency and construction of the
indictment.
Section 19 of the Criminal Code condemns as a criminal offense
any conspiracy to injure a citizen in the exercise "of any right or
privilege secured to him by the Constitution or laws of the United
States." Section 20 makes it a penal offense for anyone who, acting
"under color of any law,"
"willfully subjects, or causes to be subjected, any inhabitant
of any State . . . to the deprivation of any rights, privileges,
and immunities secured and
Page 313 U. S. 310
protected by the Constitution and laws of the United
States."
The Government argues that the right of a qualified voter in a
Louisiana congressional primary election to have his vote counted
and cast is a right secured by Article I, §§ 2 and 4 of the
Constitution, and that a conspiracy to deprive the citizen of that
right is a violation of § 19, and also that the willful action of
appellees as state officials, in falsely counting the ballots at
the primary election and in falsely certifying the count, deprived
qualified voters of that right and of the equal protection of the
laws guaranteed by the Fourteenth Amendment, all in violation of §
20 of the Criminal Code.
Article I, § 2 of the Constitution, commands that
"The House of Representatives shall be composed of members
chosen every second Year by the People of the several States and
the Electors in each State shall have the qualifications requisite
for electors of the most numerous Branch of the State
Legislature."
By § 4 of the same article,
"The times, places and manner of holding elections for Senators
and Representatives shall be prescribed in each State by the
Legislature thereof; but the Congress may at any time by Law make
or alter such Regulations, except as to the Places of chusing
Senators."
Such right as is secured by the Constitution to qualified voters
to choose members of the House of Representatives is thus to be
exercised in conformity to the requirements of state law subject to
the restrictions prescribed by § 2 and to the authority conferred
on Congress by § 4, to regulate the times, places and manner of
holding elections for representatives.
We look then to the statutes of Louisiana here involved to
ascertain the nature of the right which under the constitutional
mandate they define and confer on the voter, and the effect upon
its exercise of the acts with which appellees are charged, all with
the view to determining,
Page 313 U. S. 311
first, whether the right or privilege is one secured by the
Constitution of the United States, second, whether the effect under
the state statute of appellees' alleged acts is such that they
operate to injure or oppress citizens in the exercise of that right
within the meaning of § 19 and to deprive inhabitants of the state
of that right within the meaning of § 20, and finally, whether §§
19 and 20, respectively, are in other respects applicable to the
alleged acts of appellees.
Pursuant to the authority given by § 2 of Article I of the
Constitution, and subject to the legislative power of Congress
under § 4 of Article I, and other pertinent provisions of the
Constitution, the states are given, and in fact exercise, a wide
discretion in the formulation of a system for the choice by the
people of representatives in Congress. In common with many other
states, Louisiana has exercised that discretion by setting up
machinery for the effective choice of party candidates for
representative in Congress by primary elections, and, by its laws,
it eliminates or seriously restricts the candidacy at the general
election of all those who are defeated at the primary. All
political parties, which are defined as those that have cast at
least 5 percent of the total vote at specified preceding elections,
are required to nominate their candidates for representative by
direct primary elections. Louisiana Act No. 46, Regular Session,
1940, §§ 1 and 3.
The primary is conducted by the state at public expense. Act No.
46,
supra, § 35. The primary, as is the general election,
is subject to numerous statutory regulations as to the time, place
and manner of conducting the election, including provisions to
insure that the ballots cast at the primary are correctly counted,
and the results of the count correctly recorded and certified to
the Secretary of State, whose duty it is to place the names of the
successful candidates of each party on the official
Page 313 U. S. 312
ballot. [
Footnote 1] The
Secretary of State is prohibited from placing on the official
ballot the name of any person as a candidate for any political
party not nominated in accordance with the provisions of the Act.
Act 46, § 1.
One whose name does not appear on the primary ballot, if
otherwise eligible to become a candidate at the general election,
may do so in either of two ways: by filing nomination papers with
the requisite number of signatures or by having his name "written
in" on the ballot on the final election. Louisiana Act No. 24,
Regular Session 1940, §§ 50, 73. Section 87 of Act No. 46
provides:
"No one who participates in the primary election of any
political party shall have the right to participate in a primary
election of any other political party, with the view of nominating
opposing candidates, nor shall he be permitted to sign any
nomination for any opposing candidate or candidates; nor shall he
be permitted to be himself a candidate in opposition to anyone
nominated at or through a primary election in which he took
part."
Section 15 of Article VIII of the Constitution of Louisiana, as
amended by Act 80 of 1934, provides that
"no person whose name is not authorized to be printed on the
official ballot, as the nominee of a political party or as
Page 313 U. S. 313
an independent candidate, shall be considered a candidate"
unless he shall file in the appropriate office at least ten days
before the general election a statement containing the correct name
under which he is to be voted for, and containing the further
statement that he is willing and consents to be voted for for that
office. The article also provides that
"no commissioners of election shall count a ballot as cast for
any person whose name is not printed on the ballot or who does not
become a candidate in the foregoing manner."
Applying these provisions, the Louisiana Court of Appeals for
the Parish of Orleans has held, in
Serpas v. Trebucq,
decided April 7, 1941, 1 So. 2d 346,
rehearing denied with
opinion April 21, 1941, 1 So. 2d 705, that an unsuccessful
candidate at the primary may not offer himself as a candidate at a
general election, and that votes for him may not lawfully be
written into the ballot or counted at such an election.
The right to vote for a representative in Congress at the
general election is, as a matter of law, thus restricted to the
successful party candidate at the primary, to those not candidates
at the primary who file nomination papers, and those whose names
may be lawfully written into the ballot by the electors. Even if,
as appellees argue, contrary to the decision in
Serpas v.
Trebucq, supra, voters may lawfully write into their ballots,
cast at the general election, the name of a candidate rejected at
the primary and have their ballots counted, the practical operation
of the primary law in otherwise excluding from the ballot on the
general election the names of candidates rejected at the primary is
such as to impose serious restrictions upon the choice of
candidates by the voters save by voting at the primary election. In
fact, as alleged in the indictment, the practical operation of the
primary in Louisiana is, and has been since the primary election
was established in 1900, to secure the election of the Democratic
primary
Page 313 U. S. 314
nominee for the Second Congressional District of Louisiana.
[
Footnote 2]
Interference with the right to vote in the Congressional primary
in the Second Congressional District for the choice of Democratic
candidate for Congress is thus, as a matter of law and in fact, an
interference with the effective choice of the voters at the only
stage of the election procedure when their choice is of
significance, since it is at the only stage when such interference
could have any practical effect on the ultimate result, the choice
of the Congressman to represent the district. The primary in
Louisiana is an integral part of the procedure for the popular
choice of Congressman. The right of qualified voters to vote at the
Congressional primary in Louisiana and to have their ballots
counted is thus the right to participate in that choice.
We come then to the question whether that right is one secured
by the Constitution. Section 2 of Article I commands that
Congressmen shall be chosen by the people of the several states by
electors, the qualifications of which it prescribes. The right of
the people to choose, whatever its appropriate constitutional
limitations, where in other respects it is defined, and the mode of
its exercise is prescribed by state action in conformity to the
Constitution, is a right established and guaranteed by the
Constitution, and hence is one secured by it to those citizens and
inhabitants of the state entitled to exercise the right.
Ex
parte Yarbrough, 110 U. S. 651;
United States v. Mosley, 238 U. S. 383.
And see Hague v. CIO, 307 U. S. 496,
307 U. S. 508,
307 U. S. 513,
307 U. S. 526,
307 U. S. 527,
307 U. S. 529,
giving the same interpretation to the like phrase "rights" "secured
by the
Page 313 U. S. 315
Constitution" appearing in § 1 of the Civil Rights Act of 1871,
17 Stat. 13. While, in a loose sense, the right to vote for
representatives in Congress is sometimes spoken of as a right
derived from the states,
See Minor v.
Happersett, 21 Wall. 162,
88 U. S. 170;
United States v. Reese, 92 U. S. 214,
92 U. S.
217-218;
McPherson v. Blacker, 146 U. S.
1,
146 U. S. 339;
Breedlove v. Suttles, 302 U. S. 277,
302 U. S. 283,
this statement is true only in the sense that the states are
authorized by the Constitution, to legislate on the subject as
provided by § 2 of Art. I, to the extent that Congress has not
restricted state action by the exercise of its powers to regulate
elections under § 4 and its more general power under Article I, §
8, clause 18 of the Constitution "to make all laws which shall be
necessary and proper for carrying into execution the foregoing
powers."
See Ex parte Siebold, 100 U.
S. 371;
Ex parte Yarbrough, supra, 110 U. S. 663,
110 U. S. 664;
Swafford v. Templeton, 185 U. S. 487;
Wiley v. Sinkler, 179 U. S. 58,
179 U. S.
64.
Obviously included within the right to choose, secured by the
Constitution is the right of qualified voters within a state to
cast their ballots and have them counted at Congressional
elections. This Court has consistently held that this is a right
secured by the Constitution.
Ex parte Yarbrough, supra; Wiley
v.Sinkler, supra; Swasord v. Templeton, supra; United States v.
Mosley, supra; see Ex parte Siebold, supra; In re Coy,
127 U. S. 731;
Logan v. United States, 144 U. S. 263. And
since the constitutional command is without restriction or
limitation, the right, unlike those guaranteed by the Fourteenth
and Fifteenth Amendments, is secured against the action of
individuals, as well as of states.
Ex parte Yarbrough, supra;
Loan v. United States, supra.
But we are now concerned with the question whether the right to
choose at a primary election, a candidate for election as
representative, is embraced in the right to choose representatives
secured by Article I, § 2. We may
Page 313 U. S. 316
assume that the framers of the Constitution, in adopting that
section, did not have specifically in mind the selection and
elimination of candidates for Congress by the direct primary any
more than they contemplated the application of the commerce clause
to interstate telephone, telegraph and wireless communication,
which are concededly within it. But, in determining whether a
provision of the Constitution applies to a new subject matter, it
is of little significance that it is one with which the framers
were not familiar. For, in setting up an enduring framework of
government, they undertook to carry out for the indefinite future,
and in all the vicissitudes of the changing affairs of men, those
fundamental purposes which the instrument itself discloses. Hence,
we read its words not as we read legislative codes which are
subject to continuous revision with the changing course of events,
but as the revelation of the great purposes which were intended to
be achieved by the Constitution as a continuing instrument of
government.
Cf. Davidson v. New Orleans, 96 U. S.
97;
Brown v. Walker, 161 U.
S. 591,
161 U. S. 595;
Robertson v. Baldwin, 165 U. S. 275,
165 U. S. 281,
165 U. S. 282.
If we remember that "it is a Constitution we are expounding," we
cannot rightly prefer, of the possible meanings of its words, that
which will defeat, rather than effectuate, the constitutional
purpose.
That the free choice by the people of representatives in
Congress, subject only to the restrictions to be found in §§ 2 and
4 of Article I and elsewhere in the Constitution, was one of the
great purposes of our constitutional scheme of government cannot be
doubted. We cannot regard it as any the less the constitutional
purpose, or its words as any the less guarantying the integrity of
that choice, when a state, exercising its privilege in the absence
of Congressional action, changes the mode of choice from a single
step, a general election, to two, of which the first is the choice
at a primary of those candidates
Page 313 U. S. 317
from whom, as a second step, the representative in Congress is
to be chosen at the election.
Nor can we say that that choice which the Constitution protects
is restricted to the second step because § 4 of Article I, as a
means of securing a free choice of representatives by the people,
has authorized Congress to regulate the manner of elections,
without making any mention of primary elections. For we think that
the authority of Congress, given by § 4, includes the authority to
regulate primary elections when, as in this case, they are a step
in the exercise by the people of their choice of representatives in
Congress. The point whether the power conferred by § 4 includes in
any circumstances the power to regulate primary elections was
reserved in
United States v. Gradwell, supra, 243 U. S. 487.
In
Newberry v. United States, supra, four Justices of this
Court were of opinion that the term "elections" in § 4 of Article I
did not embrace a primary election, since that procedure was
unknown to the framers. A fifth Justice, who with them pronounced
the judgment of the Court, was of opinion that a primary, held
under a law enacted before the adoption of the Seventeenth
Amendment, for the nomination of candidates for Senator, was not an
election within the meaning of § 4 of Article I of the
Constitution, presumably because the choice of the primary imposed
no legal restrictions on the election of Senators by the state
legislatures to which their election had been committed by Article
I, § 3. The remaining four Justices were of the opinion that a
primary election for the choice of candidates for Senator or
Representative were elections subject to regulation by Congress
within the meaning of § 4 of Article I. The question then has not
been prejudged by any decision of this Court.
To decide it, we turn to the words of the Constitution read in
their historical setting as revealing the purpose of its framers,
and search for admissible meanings of its
Page 313 U. S. 318
words which, in the circumstances of their application, will
effectuate those purposes. As we have said, a dominant purpose of §
2, so far as the selection of representatives in Congress is
concerned, was to secure to the people the right to choose
representatives by the designated electors, that is to say, by some
form of election.
Cf. the Seventeenth Amendment as to
popular "election" of Senators. From time immemorial, an election
to public office has been, in point of substance, no more and no
less than the expression by qualified electors of their choice of
candidates.
Long before the adoption of the Constitution, the form and mode
of that expression had changed from time to time. There is no
historical warrant for supposing that the framers were under the
illusion that the method of effecting the choice of the electors
would never change, or that, if it did, the change was, for that
reason, to be permitted to defeat the right of the people to choose
representatives for Congress which the Constitution had guaranteed.
The right to participate in the choice of representatives for
Congress includes, as we have said, the right to cast a ballot and
to have it counted at the general election, whether for the
successful candidate or not. Where the state law has made the
primary an integral part of the procedure of choice, or where, in
fact, the primary effectively controls the choice, the right of the
elector to have his ballot counted at the primary is likewise
included in the right protected by Article I, § 2. And this right
of participation is protected just as is the right to vote at the
election, where the primary is by law made an integral part of the
election machinery, whether the voter exercises his right in a
party primary which invariably, sometimes, or never determines the
ultimate choice of the representative. Here, even apart from the
circumstance that the Louisiana primary is made by law an
Page 313 U. S. 319
integral part of the procedure of choice, the right to choose a
representative is, in fact, controlled by the primary because, as
is alleged in the indictment, the choice of candidates at the
Democratic primary determines the choice of the elected
representative. Moreover, we cannot close our eyes to the fact,
already mentioned, that the practical influence of the choice of
candidates at the primary may be so great as to affect profoundly
the choice at the general election, even though there is no
effective legal prohibition upon the rejection at the election of
the choice made at the primary, and may thus operate to deprive the
voter of his constitutional right of choice. This was noted and
extensively commented upon by the concurring Justices in
Newberry v. United States, supra, 256 U. S.
263-269, 285,
256 U. S.
287.
Unless the constitutional protection of the integrity of
"elections" extends to primary elections, Congress is left
powerless to effect the constitutional purpose, and the popular
choice of representatives is stripped of its constitutional
protection save only as Congress, by taking over the control of
state elections, may exclude from them the influence of the state
primaries. [
Footnote 3] Such an
expedient would end that state autonomy with respect to elections
which the Constitution contemplated that Congress should be free to
leave undisturbed, subject only to such minimum regulation as it
should find necessary to insure the freedom
Page 313 U. S. 320
and integrity of the choice. Words, especially those of a
constitution, are not to be read with such stultifying narrowness.
The words of §§ 2 and 4 of Article I, read in the sense which is
plainly permissible and in the light of the constitutional purpose,
require us to hold that a primary election which involves a
necessary step in the choice of candidates for election as
representatives in Congress, and which, in the circumstances of
this case, controls that choice, is an election within the meaning
of the constitutional provision, and is subject to congressional
regulation as to the manner of holding it.
Not only does § 4 of Article I authorize Congress to regulate
the manner of holding elections, but, by Article I, § 8, Clause 18,
Congress is given authority
"to make all laws which shall be necessary and proper for
carrying into execution the foregoing powers and all other powers
vested by this Constitution in the Government of the United States
or in any department or officer thereof."
This provision leaves to the Congress the choice of means by
which its constitutional powers are to be carried into
execution.
"Let the end be legitimate; let it be within the scope of the
Constitution, and all means which are appropriate, which are
plainly adapted to that end, which are not prohibited, but consist
with the letter and spirit of the Constitution, are
constitutional."
McCulloch v.
Maryland, 4 Wheat. 316,
17 U. S. 421.
That principle has been consistently adhered to and liberally
applied, and extends to the congressional power by appropriate
legislation to safeguard the right of choice by the people of
representatives in Congress, secured by § 2 of Article I.
Ex
parte Yarbrough, supra, 110 U. S. 657,
110 U. S. 658;
cf. Second Employers Liability Cases, 223 U. S.
1,
223 U. S. 49;
Houston & Texas Ry. Co. v. United States, 234 U.
S. 342,
234 U. S. 350,
234 U. S. 355;
Wilson v. New, 243 U. S. 332,
243 U. S. 346,
243 U. S. 347;
First National Bank v. Union Trust Co., 244 U.
S. 416,
244 U. S. 419;
Selective Draft Law Cases, 245 U.
S. 366,
245 U. S. 381;
United States v. Ferger, 250 U. S. 199,
250 U. S. 205;
Hamilton
v.
Page 313 U. S. 321
Kentucky Distilleries Co., 251 U.
S. 146,
251 U. S. 155,
251 U. S. 163;
Jacob Ruppert v. Caffey, 251 U. S. 264;
Smith v. Kansas City Title & Trust Co., 255 U.
S. 180;
United States v. Darby, 312 U.
S. 100, and cases cited.
There remains the question whether §§ 19 and 20 are an exercise
of the congressional authority applicable to the acts with which
appellees are charged in the indictment. Section 19 makes it a
crime to conspire to "injure" or "oppress" any citizen "in the free
exercise or enjoyment of any right or privilege secured to him by
the Constitution." [
Footnote 4]
In
Ex parte Yarbrough, supra, and in
United States v.
Mosley, supra, as we have seen, it was held that the right to
vote in a congressional election is a right secured by the
Constitution, and that a conspiracy to prevent the citizen from
voting, or to prevent the official count of his ballot when cast,
is a conspiracy to injure and oppress the citizen in the free
exercise of a right secured by the Constitution within the meaning
of § 19. In reaching this conclusion, the Court found no
uncertainty or ambiguity in the statutory language, obviously
devised to protect the citizen "in the free exercise or enjoyment
of any right or privilege secured to him by the Constitution," and
concerned itself with the question whether the right to participate
in choosing a representative
Page 313 U. S. 322
is 90 secured. [
Footnote 5]
Such is our function here. Conspiracy to prevent the official count
of a citizen's ballot, held in
United States v. Mosley,
supra, to be a violation of § 19 in the case of a
congressional election, is equally a conspiracy to injure and
oppress the citizen when the ballots are cast in a primary election
prerequisite to the choice of party candidates for a congressional
election. In both cases, the right infringed is one secured by the
Constitution. The injury suffered by the citizen in the exercise of
the right is an injury which the statute describes and to which it
applies in the one case as in the other.
The suggestion that § 19, concededly applicable to conspiracies
to deprive electors of their votes at congressional elections, is
not sufficiently specific to be deemed applicable to primary
elections, will hardly bear examination. Section 19 speaks neither
of elections nor of primaries. In unambiguous language, it protects
"any right or privilege secured by the Constitution," a phrase
which, as we have seen, extends to the right of the voter to have
his vote counted in both the general election and in the primary
election, where the latter is a part of the election machinery, as
well as to numerous other constitutional rights which are wholly
unrelated to the choice of a representative in Congress.
United
States v. Waddell, 112 U. S. 76;
Logan v. United States, 144 U. S. 263;
In re Quarles, 158 U. S. 532;
Motes v. United States, 178 U. S. 458;
Guinn v. United States, 238 U. S. 347.
In the face of the broad language of the statute, we are pointed
to no principle of statutory construction
Page 313 U. S. 323
and to no significant legislative history which could be thought
to sanction our saying that the statute applies any the less to
primaries than to elections, where, in one as in the other, it is
the same constitutional right which is infringed. It does not avail
to attempt to distinguish the protection afforded by § 1 of the
Civil Rights Act of 1871, [
Footnote
6] to the right to participate in primary, as well as general,
elections secured to all citizens by the Constitution,
see
Guinn v. United States, 238 U. S. 347;
Nixon v. Herndon, 273 U. S. 536;
Nixon v. Condon, 286 U. S. 73;
Lane v. Wilson, 307 U. S. 268, on
the ground that, in those cases, the injured citizens were Negroes
whose rights were clearly protected by the Fourteenth Amendment. At
least since
Ex parte Yarbrough, supra, and no member of
the Court seems ever to have questioned it, the right to
participate in the choice of representatives in Congress has been
recognized as a right protected by Art. I, §§ 2 and 4 of the
Constitution. [
Footnote 7]
Differences of opinion have arisen as to the effect of the primary
in particular cases on the choice of representatives. But we are
troubled by no such doubt here. Hence, the right to participate
through the primary in the choice of representatives in Congress --
a right clearly secured by the Constitution -- is within the words
and
Page 313 U. S. 324
purpose of § 19 in the same manner and to the same extent as the
right to vote at the general election.
United States v. Mosley,
supra. It is no extension of the criminal statute, as it was
not of the civil statute in
Nixon v. Herndon, supra, to
find a violation of it in a new method of interference with the
right which its words protect. For it is the constitutional right,
regardless of the method of interference, which is the subject of
the statute and which in precise terms it protects from injury and
oppression.
It is hardly the performance of the judicial function to
construe a statute which, in terms, protects a right secured by the
Constitution, here the right to choose a representative in
Congress, as applying to an election whose only function is to
ratify a choice already made at the primary, but as having no
application to the primary which is the only effective means of
choice. To withdraw from the scope of the statute an effective
interference with the constitutional right of choice because other
wholly different situations not now before us may not be found to
involve such an interference,
cf. United States v.
Bathgate, 246 U. S. 220;
United States v. Gradwell, 243 U.
S. 476, is to say that acts plainly within the statute
should be deemed to be without it because other hypothetical cases
may later be found not to infringe the constitutional right with
which alone the statute is concerned.
If a right secured by the Constitution may be infringed by the
corrupt failure to include the vote at a primary in the official
count, it is not significant that the primary, like the voting
machine, was unknown when § 19 was adopted. [
Footnote 8] Abuse of either may infringe the right
and
Page 313 U. S. 325
therefore violate § 19.
See United States v. Pleva, 66
F.2d 529, 530;
cf. Browder v. United States, 312 U.
S. 335. Nor does the fact that, in circumstances not
here present, there may be difficulty in determining whether the
primary so affects the right of the choice as to bring it within
the constitutional protection afford any ground for doubting the
construction and application of the statute once the constitutional
question is resolved. That difficulty is inherent in the judicial
administration of every federal criminal statute, for none,
whatever its terms, can be applied beyond the reach of the
congressional power which the Constitution confers.
Standard
Sanitary Mfg. Co. v. United States, 226 U. S.
20;
Hoke v. United States, 227 U.
S. 308;
Nash v. United States, 229 U.
S. 373;
United States v. Freeman, 239 U.
S. 117;
United States v. Darby, 312 U.
S. 100.
The right of the voters at the primary to have their votes
counted is, as we have stated, a right or privilege secured by the
Constitution, and to this § 20 also gives protection. [
Footnote 9] The alleged acts of
appellees were committed in the course of their performance of
duties under the Louisiana statute requiring them to count the
Page 313 U. S. 326
ballots, to record the result of the count, and to certify the
result of the election. Misuse of power, possessed by virtue of
state law and made possible only because the wrongdoer is clothed
with the authority of state law, is action taken "under color of"
state law.
Ex parte Virginia, 100 U.
S. 339,
100 U. S. 346;
Home Telephone & Telegraph Co. v. Los Angeles,
227 U. S. 278,
227 U. S. 287,
et seq.; Hague v. CIO, 307 U. S. 496,
307 U. S. 507,
307 U. S. 519;
cf. 101 F.2d 774, 790. Here, the acts of appellees
infringed the constitutional right and deprived the voters of the
benefit of it within the meaning of § 20, unless, by its terms, its
application is restricted to deprivations "on account of such
inhabitant being an alien or by reason of his color, or race."
The last clause of § 20 protects inhabitants of a state from
being subjected to different punishments, pains or penalties, by
reason of alienage, color or race, than are prescribed for the
punishment of citizens. That the qualification with respect to
alienage, color, and race refers only to differences in punishment,
and not to deprivations of any rights or privileges secured by the
Constitution, is evidenced by the structure of the section and the
necessities of the practical application of its provisions. The
qualification as to alienage, color, and race is a parenthetical
phrase in the clause penalizing different punishments "than are
prescribed for citizens," and, in the common use of language, could
refer only to the subject matter of the clause, and not to that of
the earlier one relating to the deprivation of rights, to which it
makes no reference in terms.
Moreover, the prohibited differences of punishment on account of
alienage, color. or race are those referable to prescribed
punishments which are to be compared with those prescribed for
citizens. A standard is thus set up applicable to differences in
prescribed punishments on account of alienage, color or race, which
it would be difficult,
Page 313 U. S. 327
if not impossible, to apply to the willful deprivations of
constitutional rights or privileges in order to determine whether
they are on account of alienage, color, or race. We think that § 20
authorizes the punishment of two different offenses. The one is
willfully subjecting any inhabitant to the deprivation of rights
secured by the Constitution; the other is willfully subjecting any
inhabitant to different punishments on account of his alienage,
color, or race than are prescribed for the punishment of citizens.
The meager legislative history of the section supports this
conclusion. [
Footnote
10]
Page 313 U. S. 328
So interpreted, § 20 applies to deprivation of the
constitutional rights of qualified voters to choose representatives
in Congress. The generality of the section, made applicable as it
is to deprivations of any constitutional right, does not obscure
its meaning or impair its force within
Page 313 U. S. 329
the scope of its application, which is restricted, by its terms,
to deprivations which are willfully inflicted by those acting under
color of any law, statute and the like.
We do not discuss the application of § 20 to deprivations of the
right to equal protection of the laws guaranteed by the Fourteenth
Amendment, a point apparently raised and discussed for the first
time in the Government's brief in this Court. The point was not
specially considered or decided by the court below, and has not
been assigned as error by the Government. Since the indictment, on
its face, does not purport to charge a deprivation of equal
protection to voters or candidates, we are not called upon to
construe the indictment in order to raise a question of statutory
validity or construction which we are alone authorized to review
upon this appeal.
Reversed.
The CHIEF JUSTICE took no part in the consideration or decision
of this case.
[
Footnote 1]
The ballots are printed at public expense, § 35 of Act No. 46,
Regular Session, 1940, are furnished by the Secretary of State, §
36 in a form prescribed by statute, § 37. Close supervision of the
delivery of the ballots to the election commissioners is
prescribed, §§ 446. The polling places are required to be equipped
to secure secrecy, §§ 48 50; §§ 54-57. The selection of election
commissioners is prescribed, § 61, and their duties detailed. The
commissioners must swear to conduct the election impartially, § 64,
and are subject to punishment for deliberately falsifying the
returns or destroying the lists and ballots, §§ 98, 99. They must
identify by certificate the ballot boxes used, § 67, keep a
triplicate list of voters, § 68, publicly canvass the return, § 74,
and certify the same to the Secretary of State, § 75.
[
Footnote 2]
For a discussion of the practical effect of the primary in
controlling or restricting election of candidates at general
elections,
see Hasbrouck, Party Government in the House of
Representatives (1927) 172, 176 177; Merriam and Overacker, Primary
Elections (1928) 267-269; Stoney, Suffrage in the South; 29 Survey
Graphic, 163, 164.
[
Footnote 3]
Congress has recognized the effect of primaries on the free
exercise of the right to choose the representatives, for it has
inquired into frauds at primaries, as well as at the general
elections, in judging the "Elections Returns and Qualifications of
its Own Members," Art. I, § 5.
See Grace v. Whaley,
H.Rept. No. 158, 63d Cong., 2d Sess.; Peddy v. Mayfield, S.Rept.
No. 973, 68th Cong., 2d Sess.; Wilson v. Vare, S.Rept. No. 1858,
70th Cong., 2d Sess., S.Rept. No. 47, 71st Cong., 2d Sess., and
S.Res. 111, 71st Cong., 2d Sess.
See also Investigation of Campaign Expenditures in the
1940 Campaign, S.Rept. No. 47, 77th Cong., 1st Sess., p. 48
et
seq.
[
Footnote 4]
Section 19 of the Criminal Code (U.S.C. Title 18, § 51):
"If two or more persons conspire to injure, oppress, threaten,
or intimidate any citizen in the free exercise or enjoyment of any
right or privilege secured to him by the Constitution or laws of
the United States, or because of his having so exercised the same,
or if two or more persons go in disguise on the highway, or on the
premises of another, with intent to prevent or hinder his free
exercise or enjoyment of any right or privilege so secured, they
shall be fined not more than $5,000 and imprisoned not more than
ten years, and shall, moreover, be thereafter ineligible to any
office, or place of honor, profit, or trust created by the
Constitution or laws of the United States."
(R.S. § 5508; Mar. 4, 1909, c. 321, § 19, 35 Stat. 1092.)
[
Footnote 5]
In
United States v. Mosley, 238 U.
S. 383,
238 U. S. 386,
the Court thought that "Manifestly the words are broad enough to
cover the case," it canvassed at length the objections that § 19
was never intended to apply to crimes against the franchise, and
the other contention, which it also rejected, that § 19 had been
repealed or so restricted as not to apply to offenses of that
class. It is unnecessary to repeat that discussion here.
[
Footnote 6]
Section 1 now reads, 8 U.S.C. § 43:
"Every person who, under color of any statute, ordinance,
regulation, custom or usage, of any State or Territory, subjects or
causes to be subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution and
laws, shall be liable to the party injured in an action at law,
suit in equity, or other proper proceeding for redress."
[
Footnote 7]
See e.g., Guinn v. United States, 238 U.
S. 347;
United States v. O'Toole, 236 F. 993,
aff'd, United States v. Gradwell, 243 U.
S. 476;
Aczel v. United States, 232 F. 652;
Felix v. United States, 186 F. 685;
Karem v. United
States, 121 F. 250;
Walker v. United States, 93 F.2d
383;
Luteran v. United States, 93 F.2d 395.
[
Footnote 8]
No conclusion is to be drawn from the failure of the Hatch Act,
53 Stat. 1147, 18 U.S.C. § 61, to enlarge § 19 by provisions
specifically applicable to primaries. Its failure to deal with the
subject seems to be attributable to constitutional doubts,
stimulated by
Newberry v. United States, 256 U.
S. 232, which are here resolved.
See 84
Cong.Rec. 76th Cong., 1st Sess., p. 4191;
cf.
Investigation of Campaign Expenditures in the 1940 Campaign,
S.Rept. No. 47, 77th Cong., 1st Sess., p. 48.
[
Footnote 9]
Section 20 of the Criminal Code (U.S.C. Title 18 § 52):
"Whoever, under color of any law, statute, ordinance,
regulation, or custom, willfully subjects, or causes to be
subjected, any inhabitant of any State, Territory, or District to
the deprivation of any rights, privileges, or immunities secured or
protected by the Constitution and laws of the United States, or to
different punishments, pains, or penalties, on account of such
inhabitant being an alien, or by reason of his color, or race, than
are prescribed for the punishment of citizens, shall be fined not
more than $1,000, or imprisoned not more than one year, or
both."
(R.S. § 5510; Mar. 4, 1909, c. 321, § 20, 35 Stat. 1092.)
[
Footnote 10]
The precursor of § 20 was § 2 of the Civil Rights Act of April
9, 1866, 14 Stat. 27, which reads:
"That any person who, under color of any law, statute,
ordinance, regulation, or custom, shall subject, or cause to be
subjected, any inhabitant of any State or Territory to the
deprivation of any right secured or protected by this act, or to
different punishment, pains, or penalties on account of such person
having at any time been held in a condition of slavery or
involuntary servitude, except as a punishment for crime whereof the
party shall have been duly convicted, or by reason of his color or
race, than is prescribed for the punishment of white persons, shall
be deemed guilty of a misdemeanor, and, on conviction shall be
punished by fine. . . ."
This section, so far as now material, was in substance the same
as § 20 except that the qualifying reference to differences in
punishment made no mention of alienage, the reference being to
"different punishment . . . on account of such person having at any
time been held in a condition of slavery or involuntary
servitude."
Senator Trumbull, the putative author of S. 61, 39th Cong., 1st
Sess., the Civil Rights Bill of 1866, and Chairman of the Senate
Judiciary Committee, which reported the bill, in explaining it,
stated that the bill was "to protect all persons in the United
States in their civil rights, and furnish the means of their
vindication. . . ." Cong.Globe, 39th Cong., 1st Sess., p. 211. He
also declared, "The bill applies to white men, as well as black
men." Cong.Globe, 39th Cong., 1st Sess., p. 599. Opponents of the
bill agreed with this construction of the first clause of the
section, declaring that it referred to the deprivation of
constitutional rights of all inhabitants of the states of every
race and color. Pp. 598, 601.
On February 24, 1870, Senator Stewart of Nevada, introduced S.
365, 41st Cong., 2d Sess., § 2 of which read:
"That any person who, under color of any law, statute,
ordinance, regulation, or custom shall subject, or cause to be
subjected, any inhabitant of any State or Territory to the
deprivation of any right secured or protected by this act, or to
different punishment, pains, or penalties on account of such person
being an alien, or by reason of his color or race, than is
prescribed for the punishment of white persons, shall be deemed
guilty of a misdemeanor. . . ."
In explaining the bill he declared, Cong.Globe, 41st Cong., 2d
Sess., p. 1536, that the purpose of the bill was to extend its
benefits to aliens, saying,
"It extends the operation of the Civil Rights Bill, which is
well known in the Senate and to the country, to all persons within
the jurisdiction of the United States."
The Committee reported out a substitute bill to H.R. 1293, to
which S. 365 was added as an amendment. As so amended, the bill,
when adopted, became the present § 20 of the Criminal Code, which
read exactly as did § 2 of the Civil Rights Act, except that the
word "aliens" was added and the word "citizens" was substituted for
the phrase "white persons."
While the legislative history indicates that the immediate
occasion for the adoption of § 20, like the Fourteenth Amendment
itself, was the more adequate protection of the colored race and
their civil rights, it shows that neither was restricted to the
purpose, and that the first clause of § 20 was intended to protect
the constitutional rights of all inhabitants of the states. H.R.
1293, 41st Cong., 2d Sess., which was later amended in the Senate
to include § 2 of S. 365 as § 17 of the bill as it passed, now § 20
of the Criminal Code, was originally entitled
"A bill to enforce the right of citizens of the United States to
vote in the several States of this Union, who have hitherto been
denied that right on account of race, color, or previous condition
of servitude."
When the bill came to the Senate, its title was amended and
adopted to read, "A bill to enforce the right of citizens of the
United States to vote in the several State of this Union and for
other purposes."
MR. JUSTICE DOUGLAS, dissenting.
Free and honest elections are the very foundation of our
republican form of government. Hence, any attempt to defile the
sanctity of the ballot cannot be viewed with equanimity. As stated
by Mr. Justice Miller in
Ex parte Yarbrough, 110 U.
S. 651,
110 U. S. 666,
"the temptations to control these elections by violence and
corruption" have been a constant source of danger in the history of
all republics. The acts here charged, if proven, are of a kind
which carries that threat, and are highly offensive. Since they
corrupt the process of Congressional elections, they transcend mere
local concern and extend a contaminating influence into the
national domain.
I think Congress has ample power to deal with them. That is to
say, I disagree with
Newberry v. United States,
256 U. S. 232, to
the extent that it holds that Congress
Page 313 U. S. 330
has no power to control primary elections. Art. I, § 2 of the
Constitution provides that "The House of Representatives shall be
composed of Members chosen every second Year by the People of the
several States." Art. I, § 4 provides that
"The Times, Places and Manner of holding Elections for Senators
and Representatives, shall be prescribed in each State by the
Legislature thereof; but the Congress may at any time by Law make
or alter such Regulations, except as to the Places of chusing
Senators."
And Art. I, § 8, clause 18 gives Congress the power
"To make all Laws which shall be necessary and proper for
carrying into Execution the foregoing Powers, and all other Powers
vested by this Constitution in the Government of the United States,
or in any Department or Officer thereof."
Those sections are an arsenal of power ample to protect
Congressional elections from any and all forms of pollution. The
fact that a particular form of pollution has only an indirect
effect on the final election is immaterial. The fact that it occurs
in a primary election or nominating convention is likewise
irrelevant. The important consideration is that the Constitution
should be interpreted broadly, so as to give to the representatives
of a free people abundant power to deal with all the exigencies of
the electoral process. It means that the Constitution should be
read so as to give Congress an expansive implied power to place
beyond the pale acts which, in their direct or indirect effect,
impair the integrity of Congressional elections. For when
corruption enters, the election is no longer free, the choice of
the people is affected. To hold that Congress is powerless to
control these primaries would indeed be a narrow construction of
the Constitution, inconsistent with the view that that instrument
of government was designed not only for contemporary needs, but for
the vicissitudes of time.
So I agree with most of the views expressed in the opinion of
the Court. And it is with diffidence that I dissent from the result
there reached.
Page 313 U. S. 331
The disagreement centers on the meaning of § 19 of the Criminal
Code, which protects every right secured by the Constitution. The
right to vote at a final Congressional election and the right to
have one's vote counted in such an election have been held to be
protected by § 19.
Ex parte Yarbrough, supra; United States v.
Mosley, 238 U. S. 383. Yet
I do not think that the principles of those cases should be, or
properly can be, extended to primary elections. To sustain this
indictment, we must so extend them. But when we do, we enter
perilous territory.
We enter perilous territory because, as stated in
United
States v. Gradwell, 243 U. S. 476,
243 U. S. 485,
there is no common law offense against the United States;
"the legislative authority of the Union must make an act a
crime, affix a punishment to it, and declare the Court that shall
have jurisdiction of the offence."
United States v.
Hudson, 7 Cranch 32,
11
U. S. 34. If a person is to be convicted of a crime, the
offense must be clearly and plainly embraced within the statute. As
stated by Chief Justice Marshall in
United
States v. Wiltberger, 5 Wheat. 76,
18 U. S. 105,
"probability is not a guide which a court, in construing a penal
statute, can safely take." It is one thing to allow wide and
generous scope to the express and implied powers of Congress; it is
distinctly another to read into the vague and general language of
an act of Congress specifications of crimes. We should ever be
mindful that, "before a man can be punished, his case must be
plainly and unmistakably within the statute."
United States v.
Lacher, 134 U. S. 624,
134 U. S. 628.
That admonition is reemphasized here by the fact that § 19 imposes
not only a fine of $5,000 and ten years in prison, but also makes
him who is convicted "ineligible to any office, or place of honor,
profit, or trust created by the Constitution or laws of the United
States." It is not enough for us to find in the vague penumbra of a
statute some offense about which Congress could have legislated,
and then to particularize it as a crime because it is highly
Page 313 U. S. 332
offensive.
Cf. James v. Bowman, 190 U.
S. 127. Civil liberties are too dear to permit
conviction for crimes which are only implied, and which can be
spelled out only by adding inference to inference.
Sec.19 does not purport to be an exercise by Congress of its
power to regulate primaries. It merely penalizes conspiracies
"to injure, oppress, threaten, or intimidate any citizen in the
free exercise or enjoyment of any right or privilege secured to him
by the Constitution or laws of the United States."
Thus, it does no more than refer us to the Constitution
[
Footnote 2/1] for the purpose of
determining whether or not the right to vote in a primary is there
secured. Hence, we must do more than find in the Constitution the
power of Congress to afford that protection. We must find that
protection on the face of the Constitution itself. That is to say,
we must in view of the wording of § 19 read the relevant provisions
of the Constitution for the purposes of this case through the
window of a criminal statute.
There can be put to one side cases where state election
officials deprive negro citizens of their right to vote at a
general election (
Guinn v. United States, 238 U.
S. 347), or at a primary.
Nixon v. Herndon,
273 U. S. 536;
Nixon v. Condon, 286 U. S. 73.
Discrimination on the basis of race or color is plainly outlawed by
the Fourteenth Amendment. Since the constitutional mandate is
plain, there is no reason why § 19 or § 20 should not be
applicable. But the situation here is quite different. When we turn
to the constitutional provisions relevant to this case, we find no
such unambiguous mandate.
Art. I, § 4 specifies the machinery whereby the times, places
and manner of holding elections shall be established and
controlled. Art I, § 2 provides that representatives shall be
"chosen" by the people. But, for purposes of the
Page 313 U. S. 333
criminal law, as contrasted to the interpretation of the
Constitution as the source of the implied power of Congress, I do
not think that those provisions, in absence of specific legislation
by Congress, protect the primary election or the nominating
convention. While they protect the right to vote, and the right to
have one's vote counted, at the final election, as held in the
Yarbrough and
Mosley cases, they certainly do not
per se extend to all acts which in their indirect or
incidental effect restrain, restrict, or interfere with that
choice. Bribery of voters at a general election certainly is an
interference with that freedom of choice. It is a corruptive
influence which, for its impact on the election process, is as
intimate and direct as the acts charged in this indictment. And
Congress has ample power to deal with it. But this Court in
United States v. Bathgate, 246 U.
S. 220, by a unanimous vote, held that conspiracies to
bribe voters at a general election were not covered by § 19. While
the conclusion in that case may be reconciled with the results in
the
Yarbrough and
Mosley cases on the ground that
the right to vote at a general election is personal, while the
bribery of voters only indirectly affects that personal right, that
distinction is not of aid here. For the failure to count votes cast
at a primary has, by the same token, only an indirect effect on the
voting at the general election. In terms of causal effect,
tampering with the primary vote may be as important on the outcome
of the general election as bribery of voters at the general
election itself. Certainly, from the viewpoint of the individual
voter, there is as much a dilution of his vote in the one case as
in the other. So, in light of the
Mosley and
Bathgate cases, the test under § 19 is not whether the
acts in question constitute an interference with the effective
choice of the voters. It is whether the voters are deprived of
their votes in the general election. Such a test comports with the
standards for construction of a criminal law, since it restricts §
19 to protection of
Page 313 U. S. 334
the rights plainly and directly guaranteed by the Constitution.
Any other test entails an inquiry into the indirect or incidental
effect on the general election of the acts done. But, in view of
the generality of the words employed, such a test would be
incompatible with the criteria appropriate for a criminal case.
The
Mosley case, in my view, went to the verge when it
held that § 19 and the relevant constitutional provisions made it a
crime to fail to count votes cast at a general election. That
Congress intended § 19 to have that effect was none too clear. The
dissenting opinion of Mr. Justice Lamar in that case points out
that § 19 was originally part of the Enforcement Act of May 31,
1870, c. 114, § 6, 16 Stat. 140. Under another section of that act
(§ 4), which was repealed by the Act of February 8, 1894 (28 Stat.
36), the crime charged in the
Mosley case would have been
punishable by a fine of not less than $500 and imprisonment for 12
months. [
Footnote 2/2] Under § 19,
it carried, as it still does, a penalty of $5000 and ten years in
prison. The Committee Report (H.Rep. No. 18, 53d Cong., 1st Sess.),
which recommended the repeal of other sections, clearly indicated
an intent to remove the hand of the Federal Government from such
elections and to restore their conduct and policing to the
states.
Page 313 U. S. 335
As the Report stated (p. 7):
"Let every trace of the reconstruction measures be wiped from
the statute books; let the States of this great Union understand
that the elections are in their own hands, and if there be fraud,
coercion, or force used, they will be the first to feel it.
Responding to a universal sentiment throughout the country for
greater purity in elections, many of our States have enacted laws
to protect the voter and to purify the ballot. These, under the
guidance of State officers, have worked efficiently,
satisfactorily, and beneficently, and if these Federal statutes are
repealed, that sentiment will receive an impetus which, if the
cause still exists, will carry such enactments in every State in
the Union."
In view of this broad, comprehensive program of repeal, it is
not easy to conclude that the general language of § 19, which was
not repealed, not only continued in effect much which had been
repealed, but also upped the penalties for certain offenses which
had been explicitly covered by one of the repealed sections. Mr.
Justice Holmes, writing for the majority in the
Mosley
case, found in the legislative and historical setting of § 19 and
in its revised form a Congressional interpretation which, if § 19
were taken at its face value, was thought to afford voters in final
Congressional elections general protection. And that view is a
tenable one, since § 19 originally was part of an Act regulating
general elections, and since the acts charged had a direct, rather
than an indirect, effect on the right to vote at a general
election.
But, as stated by a unanimous court in
United States v.
Gradwell, supra, p.
243 U. S. 486,
the
Mosley case "falls far short" of making § 19
"applicable to the conduct of a state nominating primary." Indeed,
Mr. Justice Holmes, the author of the
Mosley opinion,
joined with Mr. Justice McReynolds in the
Newberry case in
his view that Congress had no authority under Art. I, § 4 of the
Constitution to legislate on primaries. When § 19
Page 313 U. S. 336
was part of the Act of May 31, 1870, it certainly would never
have been contended that it embraced primaries, for they were
hardly known at that time. [
Footnote
2/3] It is true that "even a criminal statute embraces
everything which subsequently falls within its scope."
Browder
v. United States, 312 U. S. 335,
312 U. S. 340.
Yet the attempt to bring under § 19 offenses "committed in the
conduct of primary elections or nominating caucuses or conventions"
was rejected in the
Gradwell case, where this Court said
that, in absence of legislation by Congress on the subject of
primaries, it is not for the courts
"to attempt to supply it by stretching old statutes to new uses
to which they are not adapted and for which they were not intended.
. . . [T]he section of the Criminal Code relied upon, originally
enacted for the protection of the civil rights of the then lately
enfranchised negro, cannot be extended so as to make it an agency
for enforcing a state primary law."
243 U.S. pp.
243 U. S.
488-489. The fact that primaries were hardly known when
§ 19 was enacted, the fact that it was part of a legislative
program governing general elections, not primary elections, the
fact that it has been in nowise implemented by legislation directed
at primaries, give credence to the unanimous view in the
Gradwell case that § 19 has not, by the mere passage of
time, taken on a new and broadened meaning. At least it seems plain
that the difficulties of applying the historical reason adduced by
Mr. Justice Holmes in the
Mosley case to bring general
elections within § 19 are so great in case of primaries that we
have left the safety zone of interpretation of criminal statutes
when we sustain this indictment. It is one thing to say, as in the
Mosley case, that Congress was legislating as respects
general elections when it passed § 19. That was the fact. It is
quite
Page 313 U. S. 337
another thing to say that Congress, by leaving § 19 unmolested
for some seventy years, has legislated unwittingly on primaries.
Sec. 19 was never part of an act of Congress directed towards
primaries. That was not its original frame of reference. Therefore,
unlike the
Mosley case, it cannot be said here that § 19
still covers primaries because it was once an integral part of
primary legislation.
Furthermore, the fact that Congress has legislated only
sparingly and at infrequent intervals even on the subject of
general elections (
United States v. Gradwell, supra)
should make us hesitate to conclude that, by mere inaction,
Congress has taken the greater step, entered the field of
primaries, and gone further than any announced legislative program
has indicated. The acts here charged constitute crimes under the
Louisiana statute. La.Act No. 46, Reg.Sess. 1940, § 89. In absence
of specific Congressional action, we should assume that Congress
has left the control of primaries and nominating conventions to the
states -- an assumption plainly in line with the Committee Report,
quoted above, recommending the repeal of portions of the
Enforcement Act of May 31, 1870, so as to place the details of
elections in state hands. There is no ground for inference in
subsequent legislative history that Congress has departed from that
policy by superimposing its own primary penal law on the primary
penal laws of the states. Rather, Congress has been fairly
consistent in recognizing state autonomy in the field of elections.
To be sure, it has occasionally legislated on primaries. [
Footnote 2/4] But even when dealing
specifically with the nominating process, it has never made acts of
the kind here in question a crime. In this connection, it should be
noted that the bill which became the Hatch Act (53 Stat. 1147; 18
U.S.C. § 61)
Page 313 U. S. 338
contained a section which made it unlawful
"for any person to intimidate, threaten, or coerce, or to
attempt to intimidate, threaten, or coerce, any other person for
the purpose of interfering with the right of such other person to
vote or to vote as he may choose, or of causing such other person
to vote for, or not to vote for, any candidate for the nomination
of any party as its candidate"
for various federal offices, including representatives, "
at
any primary or nominating convention held solely or in part"
for that purpose. This was stricken in the Senate. 84 Cong.Rec. pt.
4, 76th Cong., 1st Sess., p. 4191. That section would have extended
the same protection to the primary and nominating convention as § 1
of the Hatch Act [
Footnote 2/5]
extends to the general election. The Senate, however, refused to do
so. Yet this Court now holds that § 19 has protected the primary
vote all along, and that it covers conspiracies to do the precise
thing on which Congress refused to legislate in 1939. The
hesitation on the part of Congress through the years to enter the
primary field, its refusal to do so [
Footnote 2/6] in 1939, and the restricted scope of such
primary laws as it has passed, should be ample evidence
Page 313 U. S. 339
that this Court is legislating when it takes the initiative in
extending § 19 to primaries.
We should adhere to the strict construction given to § 19 by a
unanimous court in
United States v. Bathgate, 246 U.
S. 220,
246 U. S. 226,
where it was said:
"Section 19, Criminal Code, of course, now has the same meaning
as when first enacted . . . , and, considering the policy of
Congress not to interfere with elections within a State except by
clear and specific provisions, together with the rule respecting
construction of criminal statutes, we cannot think it was intended
to apply to conspiracies to bribe voters."
That leads to the conclusion that § 19 and the relevant
constitutional provisions should be read so as to exclude all acts
which do not have the direct effect of depriving voters of their
right to vote at general elections. That view has received tacit
recognition by Congress. For the history of legislation governing
Federal elections shows that the occasional Acts of Congress
[
Footnote 2/7] on the subject have
been primarily directed towards supplying detailed regulations
designed to protect the individual's constitutional right to vote
against pollution and corruption. Those laws, the latest of which
is § 1 of the Hatch Act, are ample recognition by Congress itself
that specific legislation is necessary in order to protect the
electoral process against the wide variety of acts which, in their
indirect or incidental effect, interfere with the voter's freedom
of choice and corrupt the electoral process. They are evidence that
detailed regulations are essential in order to reach acts which do
not directly interfere with the voting privilege. They are
inconsistent with the notions in the opinion of the
Page 313 U. S. 340
Court that the Constitution, unaided by definite supplementary
legislation, protects the methods by which party candidates are
nominated.
That § 19 lacks the requisite specificity necessary for
inclusion of acts which interfere with the nomination of party
candidates is reemphasized by the test here employed. The opinion
of the Court stresses, as does the indictment, that the winner of
the Democratic primary in Louisiana invariably carries the general
election. It is also emphasized that a candidate defeated in the
Louisiana primaries cannot be a candidate at the general election.
Hence, it is argued that interference with the right to vote in
such a primary is,
"as a matter of law and in fact, an interference with the
effective choice of the voters at the only stage of the election
procedure when their choice is of significance,"
and that the "primary in Louisiana is an integral part of the
procedure for the popular choice" of representatives. By that
means, the
Gradwell case is apparently distinguished. But
I do not think it is a valid distinction for the purposes of this
case.
One of the indictments in the
Gradwell case charged
that the defendants conspired to procure one thousand unqualified
persons to vote in a West Virginia primary for the nomination of a
United States Senator. This Court, by a unanimous vote, affirmed
the judgment which sustained a demurrer to that indictment. The
Court specifically reserved the question as to whether a "primary
should be treated as an election within the meaning of the
Constitution." But it went on to say that, even assuming it were,
certain "strikingly unusual features" of the particular primary
precluded such a holding in that case. It noted that candidates of
certain parties were excluded from the primary, and that even
candidates who were defeated at the primary could, on certain
conditions, be nominated for the general election. It therefore
concluded that whatever power Congress might have to control such
primaries, it had not done so by § 19.
Page 313 U. S. 341
If the
Gradwell case is to survive, as I think it
should, we have therefore this rather curious situation. Primaries
in states where the winner invariably carries the general election
are protected by § 19 and the Constitution, even though such
primaries are not, by law, an integral part of the election
process. Primaries in states where the successful candidate never
wins, seldom wins, or may not win in the general election are not
so protected, unless perchance state law makes such primaries an
integral part of the election process. Congress, having a broad
control over primaries, might conceivably draw such distinctions in
a penal code. But for us to draw them under § 19 is quite another
matter. For we must go outside the statute, examine local law and
local customs, and then, on the basis of the legal or practical
importance of a particular primary, interpret the vague language of
§ 19 in the light of the significance of the acts done. The result
is to make refined and nice distinctions which Congress certainly
has not made, to create unevenness in the application of § 19 among
the various states, and to make the existence of a crime depend not
on the plain meaning of words employed interpreted in light of the
legislative history of the statute, but on the result of research
into local law or local practices. Unless Congress has explicitly
made a crime dependent on such facts, we should not undertake to do
so. Such procedure does not comport with the strict standards
essential for the interpretation of a criminal law. The necessity
of resorting to such a circuitous route is sufficient evidence to
me that we are performing a legislative function in finding here a
definition of a crime which will sustain this indictment. A crime,
no matter how offensive, should not be spelled out from such vague
inferences.
MR. JUSTICE BLACK and MR. JUSTICE MURPHY join in this
dissent.
[
Footnote 2/1]
While § 19 also refers to "laws of the United States," § 19 and
§ 20 are the only statutes directly in point.
[
Footnote 2/2]
Sec. 5506, Rev.Stat.:
"Every person who, by any unlawful means, hinders, delays,
prevents, or obstructs, or combines and confederates with others to
hinder, delay, prevent, or obstruct, any citizen from doing any act
required to be done to qualify him to vote, or from voting at any
election . . . shall be fined not less than five hundred dollars,
or be imprisoned not less than one month nor more than one year, or
be punished by both such fine and imprisonment."
Sec. 5511 provided:
"If, at any election for Representative or Delegate in Congress,
any person . . . knowingly receives the vote of any person not
entitled to vote, or refuses to receive the vote of any person
entitled to vote . . . , he shall be punished by a fine of not more
than five hundred dollars, or by imprisonment not more than three
years, or by both. . . ."
[
Footnote 2/3]
Merriam & Overacker, Primary Elections (1928) chs. I-III, V;
Sait, American Parties & Elections (1927) ch. X; Brooks,
Political Parties & Electoral Problems (1933) ch. X.
[
Footnote 2/4]
Act of June 25, 1910, c. 392, 36 Stat. 822, as amended by the
Act of August 19, 1911, c. 33, 37 Stat. 25; Act of October 16,
1918, C. 187, 41 Stat. 1013.
[
Footnote 2/5]
"That it shall be unlawful for any person to intimidate,
threaten, or coerce, or to attempt to intimidate, threaten, or
coerce, any other person for the purpose of interfering with the
right of such other person to vote or to vote as he may choose, or
of causing such other person to vote for, or not to vote for, any
candidate for the office of President, Vice President, Presidential
elector, Member of the Senate, or Member of the House of
Representatives at any election held solely or in part for the
purpose of selecting a President, a Vice President, a Presidential
elector, or any Member of the Senate or any Member of the House of
Representatives, Delegates or Commissioners from the Territories
and insular possessions."
[
Footnote 2/6]
Sec. 2 of the Hatch Act, however, does make unlawful certain
acts of administrative employees even in connection with the
nominations for certain federal offices.
And see 54 Stat.
767, No. 753, ch. 640, 76th Cong., 3d Sess. As to the power of
Congress over employees or officers of the government,
see
United States v. Wurzbach, 280 U. S. 396.
[
Footnote 2/7]
See for example, Act of May 31, 1870, 16 Stat. 140; Act
of July 14, 1870, 16 Stat. 254, 255-256; Act of Feb. 28, 1871, 16
Stat. 433; Act of June 25, 1910, 36 Stat. 822; Act of August 19,
1911, 37 Stat. 25; Act of August 23, 1912, 37 Stat. 360; Act of
October 16, 1918, 40 Stat. 1013; Federal Corrupt Practice Act,
1925, 43 Stat. 1070; Hatch Act, August 2, 1939, 53 Stat. 1147.